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The United States Supreme Court should restrict the President’s war powers authority to indefinitely detain, on the grounds that the Geneva Conventions are self-executing.

The plan is key to effective human rights treaties

Gruber, 7

(Law Prof-Florida International, “Who’s Afraid of Geneva Law,” 39 Ariz. St. L.J. 1017, Winter, Lexis)

Internationalists and civil libertarians have widely praised Hamdi and Hamdan for creating a new era of rights, and at least one commentator has stated that the MCA, following Hamdan, "put the final nail in the coffin" of unbridled executive discretion. n447 Yet reports of the demise of executive overreaching and American isolationism are greatly exaggerated. To this day, the Guantanamo detentions continue, and the United States remains a consistent subject of criticism from international actors, the press, and the public. A finding that the Geneva Conventions are self-executing, in addition to possibly affording real and effective relief to detainees who continue to be treated in inhumane ways, would truly set the United States on a path toward reversing the sad history of the last six years. It would permit the United States to step out of the dark era of Bricker, racism, and isolation into a new light of taking international law seriously. Holding the Geneva Conventions self-executing could demonstrate that the United States is a country of laws that can proudly occupy the position of a global defender of human rights. Unfortunately, although the Supreme Court was well poised to take up the issue of treaty self-execution, it did not do so, evidencing an unfortunate [*1085] internalization of treaty law fear created by lower court activism and conservative scholarship. This fear is neither justified by the Supreme Courts' own history nor compelled by the structure of the Constitution. Because the modern self-execution doctrine, particularly the intent analysis, is essentially isolationist, the Court can only be truly internationalist when it finally puts an end to recent treaty law hostility. Consequently, now is not the time for civil libertarians and internationalists to be complacent. They must be vigilant in their advocacy of the rule of law and judicial review. If the Supreme Court is willing to once again exercise jurisdiction over cases like Hamdan, it may well have the opportunity to assess whether the procedures set forth in the MCA violate the Geneva Conventions. This time, the Court will not be able to avoid the issue of self-execution by relying on congressional intent. Thus, internationalists and civil libertarians yet have a role to play in urging the Supreme Court to be an international team player rather than a "lone ranger."

Otherwise, non-self-execution renders all treaty commitments null and void

Friedman, 5

(JD-University of Florida Law, “The Uneasy US Relationship with Human Rights Treaties: The Constitutional Treaty System and Non-Self-Execution Declarations,” 17 Fla. J. Int'l L. 187, March, Lexis)

E. Policy Arguments Against Nonself-Execution Declarations: The International Implications

Regardless of whether the constitutional arguments against nonself-execution declarations pass muster, the practice of attaching them to human rights treaties is an integral part of the blatantly protectionist U.S. foreign policy on human rights. n418 Routinely using non self-execution declarations communicates to other nations that the United States does not take its international human rights obligations seriously enough to allow them to take effect as domestic law. n419 It also undermines the foreign policy justifications for ratifying human rights treaties in the first place - most fundamentally, the motivation to serve as an example to other nations. n420 Nonself-execution declarations render the human rights treaties to which they are attached empty promises, because the terms of those treaties do not effect any change in U.S. domestic law. n421 The United States thus [*251] is seen by other nations as seeking the benefits of human rights treaties - most importantly, membership in the organizations that oversee them - without assuming any of the burdens. n422 The practice of using nonself-execution declarations reflects an attitude that human rights treaties are only for other nations, not for the United States. n423 The U.S. foreign policy on human rights promotes a double standard, whereby the United States seeks to enforce international human rights law against other nations but is unwilling to have its own practices subjected to international regulation and scrutiny. n424 On one hand, the United States [*252] played a leading role in establishing the United Nations and drafting the UDHR and other human rights treaties. n425 It also frequently expresses concern about human rights violations around the world and sometimes uses economic or military pressure to induce nations to improve their human rights practices. n426 Moreover, U.S. domestic law reflects a fundamental commitment to domestic human rights protection. n427 On the other hand, the United States has an uneasy relationship with human rights treaties and institutions. n428 The United States only occasionally ratifies human rights treaties, n429 and when it does, it attaches nonself-execution declarations without fail. n430 Furthermore, after declaring the treaties nonself-executing, it enacts the necessary implementing legislation erratically, if at all. n431 The root of this double standard lies in U.S. unilateralism, exceptionalism, and isolationism. n432 At the heart of those beliefs are two [*253] related ideas: first, that human rights in the United States are "alive and well" and do not need scrutiny from other nations whose human rights protections are much less so; n433 and second, that the U.S. government, especially U.S. courts, would take human rights obligations much more seriously than would other governments. There are four basic foundations of this "pervasive sense of cultural relativism, ethnocentrism, and nationalism" n434 in the United States: the U.S. superpower status in world affairs, n435 the exceptional stability of democratic governance inside its borders, n436 the "general conservatism" of its politics, n437 and the decentralized and divided nature of its political institutions. n438 Nonself-execution declarations reflect this nationalistic sense of superiority and communicate a "refusal to consider the possibility that change may potentially bring improvement rather than deterioration" to domestic human rights protections. n439 To a somewhat lesser extent, the foundation of the human rights double standard also lies in the differences between U.S. constitutional rights and international human rights. n440 First, American constitutional rights focus [*254] on the democratic form of government more specifically than do international rights. n441 Second, American constitutional rights are natural rights, and refer back to ideas that are European - rather than universal - in nature. n442 Other nations are becoming increasingly frustrated with U.S. foreign policy on human rights and with U.S. domestic human rights practices. n443 This widespread criticism damages the U.S. credibility in foreign human rights policy. n444 It also undercuts the U.S. foreign policy motivations for ratifying human rights treaties in the first place, especially the desire to serve as an example to other nations. n445

Enforcement of the ICCPR crucial to marshal support for a rights-based approach to water issues

Varma, 13

(Director of Robert F. Kennedy Center for Justice and Human Rights, 9/9, “Wòch nan soley: The denial of the right to water in Haiti,” http://www.hhrjournal.org/2013/09/09/woch-nan-soley-the-denial-of-the-right-to-water-in-haiti/)

In addition to protections in domestic law, the right to water is also recognized in international law. International and regional human rights bodies and national and international courts have interpreted the right to water as being an implicit part of other human rights, such as the right to life, the right to health, the right to an adequate standard of living, the right to food, the right to housing, and the right to education.117 These rights have been enshrined in both UN and regional human rights instruments, several of which have been ratified by Haiti and the United States. Both Haiti and the United States have ratified the International Covenant on Civil and Political Rights (ICCPR), which protects, inter alia, the right to life. Both have signed the International Covenant on Economic, Social and Cultural Rights (ICESCR), which includes, inter alia, the right to housing, food, health, and an adequate standard of living.118 The right to water is also protected under other international instruments. These instruments are useful indicators of norms accepted by the international community and reflect evidence of political will to make access to water a priority. The provisions in some international instruments have obtained the status of customary international law and thus create legal obligations for states. Customary international law is derived from a clear consensus among states as to a legal rule, which is evidenced by widespread conduct by states accompanied by a sense of legal obligation to adhere to such rule, known as opinio juris.119 The UN Committee on Economic, Social and Cultural Rights (ESCR Committee) has found that the minimum core of the main economic, social, and cultural rights has become customary international law and is thus binding on all states, regardless of whether they have signed or ratified treaties protecting those rights. Many scholars support this position.120 The right to life is further protected by customary international law, and as a necessary component of the right to life, the right to water is thus implicitly protected by customary international law.121 International instruments that may reflect customary international law and that protect the right to water, either explicitly or implicitly, include the Universal Declaration of Human Rights, the Declaration on the Right to Development, and the Millennium Development Goals.122 States’ treaty-based obligations to secure Haitians’ right to water As the situation in Haiti makes clear, legal rights provide no real protection for individuals without corresponding responsibilities, and the responsibility for fulfilling rights is an integral part of all legal rights. Generally, the government of each state bears the primary responsibility to ensure the protection and achievement of human rights for those on its territory or otherwise under its jurisdiction. A state’s human rights obligations also apply when it acts as part of a multilateral or international organization, such as the UN or the World Bank.123 Thus, members of the international community bear a measure of legal responsibility. The case of water in Haiti is directly relevant to the issue of international human rights law as codified in treaties and under customary international law. When a state signs a treaty, the state is required to refrain from any action that would contradict the object and purpose of the treaty, and when a state ratifies a treaty, the state thereby accepts the duties contained within the treaty and is required to immediately take positive steps to realize the rights contained in the treaty.124 Even if a state has neither signed nor ratified a human rights treaty, it has certain obligations under customary international law, which protects fundamental human rights and in general applies to all states. Types of duties Human rights treaties generally specify three different kinds of duties relating to the rights set out in the treaty. The first is the obligation to respect, meaning that governments must refrain from interfering directly or indirectly with an individual’s enjoyment of rights. The second is the obligation to protect, meaning that governments must prevent the violation of human rights by other actors. States’ actions to protect include actions that prevent individuals, companies, or other entities from violating individuals’ human rights, and also actions to investigate and punish such violations if they occur. And the third duty is the obligation to fulfill, meaning that governments must adopt whatever measures are necessary to achieve the full realization of human rights for all. Thus, governments are required to provide subsidies, services, or other direct assistance to the most vulnerable and needy members of a society when they cannot otherwise access their rights. Obligations of the government of Haiti In accordance with these treaty-based obligations and customary international law, the Haitian government is responsible for guaranteeing and fulfilling the human rights of everyone in Haiti.125 Haiti is a party to the ICCPR, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child, the Organization of American States (OAS) Charter, and the American Convention on Human Rights; it is thus responsible for all the obligations found within each of these treaties. The Haitian government has signed, but not yet ratified, the ICESCR and the Protocol of San Salvador, both of which enumerate many of the rights at issue in this article; thus, these treaties do not strictly bind the government of Haiti. However, as a signatory, Haiti has an obligation to refrain from actions that will frustrate the object and purpose of these treaties.126 Furthermore, given that the Haitian Constitution protects the rights to health and food, the Haitian government has an obligation to ensure the satisfaction of — at the very least — minimum essential levels of each of these rights, of which access to water is an integral component. All Haitians, as rights-holders, have a particular set of entitlements, and the Haitian state, as the primary duty-bearer, has a particular set of obligations. Haitians who cannot access even the most basic forms of these entitlements are being deprived of their constitutional economic and social rights and their rights under treaties guaranteeing basic civil and political rights, such as the right to life, personal liberty, and security.127 The Haitian Constitution requires the Haitian government to recognize and protect Haitians’ rights to health, decent housing, education, and food.128 Because the right to water is an important component of these rights, the Haitian government has a responsibility to ensure the full realization of the right to water through national legislation and policies. A national water strategy should elaborate how the right to water is to be realized and should include concrete goals, policies, and a time frame for implementation.129 Obligations of the international community While the government of Haiti is the primary guarantor of Haitians’ rights, the international community also has obligations.130 Human rights treaty obligations apply not only within the territory of the ratifying state, but also apply to states’ behavior outside of their borders, through the concept of jurisdiction, and to states’ actions as members of the international community.131 This means that states must protect the human rights of all individuals within their territory or under their jurisdiction and ensure that their actions at the international level are in compliance with their human rights obligations.132 With respect to the right to water, this means that states must “refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries.”133 The following brief summary of international obligations relevant to Haiti illustrates the importance of this factor in discussing Haitians’ right to water. Two types of state action are most pertinent to the denial of the right to water in Haiti: 1) when states act individually on the international level, and 2) when they act as members of international organizations, particularly international financial institutions (IFIs). The Maastricht Guidelines, developed to clarify which state actions constitute violations of economic, social, and cultural rights, assert that states’ duties to protect human rights extend to their “participation in international organizations, where they act collectively.”134 When authorized by member states, IFIs can take actions that may help fulfill human rights, such as financing the construction of the infrastructure needed to deliver and treat water. Alternatively, actions by IFIs may hinder the enjoyment of human rights, through, for example, requiring governments to minimize social programs or privatize core services as a precondition to receipt of grants or loans. IFI actions in such cases may interfere with the target state’s ability to fulfill human rights obligations.135 To effectively ensure the realization of the right to water, member states must be held accountable for the actions that they take, through IFIs, that have a direct impact on the human rights of individuals located outside their territory.136 At a minimum, member states must abide by their duty to respect human rights in their actions as members of IFIs.137 The ESCR Committee — responsible for interpreting and monitoring compliance with the ICESCR — has determined that states are bound by human rights obligations when acting as members of IFIs.138 With regard to the right to water, the Committee notes that “States parties that are members of international financial institutions, notably the International Monetary Fund (IMF), the World Bank, and regional development banks, should take steps to ensure that the right to water is taken into account in their lending policies, credit agreements and other international measures.”139 This statement further stipulates that “water should never be used as an instrument of political and economic pressure.”140 The majority of members of the World Bank Group and IMF (including the United States) are party to the ICCPR, which can be seen as providing protections of the right to water as an element of the right to life, a right central to the ICCPR.141 Also, since the ICESCR has been ratified by the majority of major IFI state members and all European Union countries, these states are obligated to comply with its provisions. The United States has not ratified the ICESCR, but it has signed the treaty, and thus must refrain from acting in a manner that would frustrate the object and purpose of the treaty.142 Many IDB member states are also members of the OAS, through which states may ratify regional treaties, including the American Convention and the Protocol of San Salvador, that protect economic and social rights. Moreover, the minimum core content of the key economic and social rights is regarded as customary international law, binding even non-ratifying states such as the United States. Thus, the action taken by the United States in blocking IDB development loans earmarked for water projects in Haiti is a direct violation of the United States’ human rights obligations.143 In this case, the United States actively impeded the Haitian state’s ability to fulfill Haitians’ human right to water through its actions, breaching its duty to respect. Such blatant frustration of the object and purpose of the human rights treaties to which the United States is a signatory or a state party is a clear violation of international law. Recommendation: Adopt a rights-based approach This article has documented the disastrous consequences of the IDB’s extended failure to disburse loans earmarked for water projects in Haiti. It has demonstrated how these actions directly impeded the Haitian government’s ability to respect, protect, and fulfill its citizens’ right to water. While the government of Haiti is primarily responsible for ensuring this right, other key actors, such as IFIs, foreign states, nongovernmental organizations, and private companies also have a role in solving Haiti’s water crisis. To ensure a sustainable solution, we recommend that all of these actors, in addition to the Haitian government, adopt a rights-based approach to the development and implementation of water projects. Such an approach would enhance the Haitian government’s ability to deliver these services and the Haitian population’s right to access safe and sufficient water. This section provides a brief explanation of a rights-based approach to development and its implications for water security in Haiti. A rights-based approach A rights-based approach to development is a conceptual framework that is based on international human rights law and methodology.144 It integrates the norms, standards, and principles of international human rights law into the plans, policies, and processes of development. A rights-based approach to development is based on five principles. First, a human rights-based approach shifts the language of development from charity to empowerment, viewing the beneficiary of development assistance as the owner of a right. The duty-bearer has a responsibility to develop access to the relevant rights to the rights-holder. Second, a rights-based approach considers the indivisibility and interdependence of interrelated rights (civil, cultural, economic, political, and social), recognizing that a policy affecting one right will necessarily have an impact on the others.145 Third, a rights-based approach requires non-discrimination and attention to vulnerable groups; that is, groups historically excluded from the political process and prohibited access to basic services must receive particular attention. Fourth, a rights-based approach to development ceases to be about charity and instead is about duty-bearers’ accountability to human rights obligations. In this case, accountability falls primarily on the government of Haiti, but also on the actions of donor states and private actors (for example, those providing public services) as they have obligations in particular situations. Transparency is crucial to increasing accountability.146 Finally, a rights-based approach requires duty-bearers to ensure a high degree of participation from communities, civil society, minorities, indigenous peoples, women, and other marginalized groups. Such participation must be active, free, and meaningful and must occur at each level of the development process.147 Measures to address and reduce structural participation inequalities or disadvantages may require appropriate preferential treatment to vulnerable and disadvantaged groups. Transparency is, again, essential. A rights-based approach to water projects in Haiti A rights-based approach to developing the water sector in Haiti requires all actors to incorporate each of these principles into their work. For example, effective participation requires that community members be involved in all efforts to improve the water situation. They should be consulted during the development of water projects, especially on issues such as water source, availability, sanitation precautions, time frames for implementation, water cost, and water quality. There must be regular consultations with the community during project development. Community members must have easy access to ongoing project information during implementation — for example, via posters, meetings, and radio programs. Such participation would help to ensure that water projects are empowering the Haitian people as rights-holders and that the projects are adequately and accurately meeting their needs. A rights-based approach also requires transparency of all efforts and actors involved in developing and implementing water projects in Haiti. There are several means to achieving this transparency. For example, since the government does not yet have the capacity to effectively regulate the private sector, groups responsible for water distribution or sale should also be responsible for regularly checking the safety of sources used for drinking water and publicizing test results. In addition, all water providers should report regularly on the status of projects, providing, at a minimum, information about available project funds, monies spent, specific timelines for implementation and completion, and any changes to original implementation plans. International entities might include mechanisms for transparency in their work in Haiti by providing readily-available public documentation of project status, including expenditures. Finally, a rights-based approach requires that each implementing entity has a clear and accessible accountability mechanism (or mechanisms) through which communities can report project problems. In Haiti’s case, this should include mechanisms for redress from all actors, including international organizations, states, IFIs, NGOs, and private entities. These mechanisms need to be locally focused and easily accessible, and they should have built-in transparency so that community members can follow the status of grievances or complaints and keep the public aware of their outcomes. Accountability also lies with the government, which should build internal accountability mechanisms into its national water strategy, with identifying benchmarks to measure the extent to which the right to water is being realized. The right to water has been compromised in Haiti for too long. A rights-based approach is an essential strategy in the successful implementation and monitoring of sustainable development projects, including water projects. While the government of Haiti is obligated to implement a rights-based approach, all entities involved in the development and implementation of water projects can contribute to fulfilling Haitians’ human rights by adopting this framework.

Right to water is protected under the ICCPR but the self-execution doctrine precludes recognition

WCU, 6

(World Conservation Union, 4/24, “Does international law recognise a human right to water?,” http://data.iucn.org/dbtw-wpd/html/EPLP-051-water-human-right/II.%20Does%20international%20law%20recognise%20a%20human%20right%20to%20water.html)

The legally binding human rights covenants of 1966, the International Covenant on Civil and Political Rights (ICCPR)14 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)15 implicitly recognise a right to water, although perhaps more strongly so in the ICESCR. The ICCPR affirms the “right to life”,16 which has conventionally been interpreted to mean that no person shall be deprived of his or her life in a civil and political sense. According to the Human Rights Committee (HRC) in adopting a General Comment on this issue, this should now be interpreted expansively to include measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics. “[HRC] has noted that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures.”17 Disregarding this new development in the understanding of Art. 6 and assuming a narrow interpretation of such a right would nevertheless require the inclusion of the protection against arbitrary and intentional denial of access to sufficient water, because this is one of the most fundamental resources necessary to sustain life. In the ICESCR, it may be argued that the right to water is already apparent in Arts. 11–12. The newly adopted General Comment18 by the UN Committee on Economic, Social and Cultural Rights left little doubt as to its view of the correct legal position: “The human right to water is indispensable for leading a life in human dignity. It is prerequisite for the realization of other human rights.” There is no obligation on State parties to implement the Covenant's provisions immediately. Hence, even though there is an implied right to water, such a right does not necessarily have to be given immediate effect. Member States do have certain immediate obligations, which include the obligation to take steps – Art. 2(1) – towards the full realization of Arts. 11(1) and 12. Therefore, because the above-mentioned General Comment (which amounts to an interpretative instrument for Arts. 11 and 12) specifically recognises the human right to water, Member States “have a constant and continuing duty”19 to progressively take active steps (including the development of policy, strategy and action plans) in order to ensure that everyone has access to safe and secure drinking water and sanitation facilities. This should be undertaken equitably and without discrimination of any kind, as Art. 2(2) requires. 5. Declaration on the Right to Development Several international documents, among them the Vienna Declaration, state that the right to development is a “universal and inalienable right and an integral part of fundamental human rights”.20 Art. 8(1) of the Declaration on the Right to Development says that “[s]tates should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources ...” In interpreting this article, the General Assembly clarified and reaffirmed in its Resolution 54/175 that “[t]he rights to food and clean water are fundamental human rights and their promotion constitutes a moral imperative both for national Governments and for the international community.”21 6. CEDAW and the Convention on the Rights of the Child To date, only two human rights treaties have referred directly to a right to water, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),22 and the Convention on the Rights of the Child.23 CEDAW obliges States Parties to eliminate discrimination against women, particularly in rural areas to ensure that women “enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”24 The express recognition of water may be viewed as a testament to the uneven burden traditionally placed on women in developing countries to collect water over long distances and represents an attempt to redress this burden.25 A different emphasis is made in the Convention on the Rights of the Child. It recognises a child's right to enjoy the highest attainable standard of health in order to “combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution…”26 In contrast to CEDAW, the pressing water issue for children is related more to health, and hence water quality rather than any other issue is emphasised. Global environmental instruments The right to water is more often expressed within non-legally binding resolutions and declarations. These instruments, both international and regional in scope, accept that fundamental human rights, such as life, health, and well being are dependent upon the premise that people are guaranteed access to sufficient quality and quantity of water. The following takes note of some of these instruments, which recognise a right to water to varying degrees.27 1. Stockholm Declaration The Declaration is one of the earliest environmental instruments that recognises the fundamental right to “an environment of a quality that permits a life of dignity and well being”28 and also that “[t]he natural resources of the earth including…water…must be safeguarded for the benefit of present and future generations…”29 2. Mar del Plata Action Plan Specific water instruments, such as the Action Plan from the United Nations Water Conference held in Mar del Plata in 1977, recognised water as a “right”, declaring that all people have the right to drinking water in quantities and of a quality equal to their basic needs.30 The primary outcome of this conference was the launching of the International Drinking Water Supply and Sanitation Decade (1980–1990) with the slogan ‘Water and Sanitation for All’. 3. Dublin Statement Principle 4 of the Dublin Conference on Water and Sustainable Development explicitly reaffirmed the human right to water: “… it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price.” 4. Agenda 21 Agenda 21, the blueprint for sustainable development, is possibly the primary non-binding international environmental legal instrument. Chapter 18 on freshwater notes that a right to water entails three elements: access, quality and quantity, including not only a “general objective …to make certain that adequate supplies of water of good quality are maintained for the entire population of this planet”31, but also to provide that “all peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic human needs.”32 Overall, an integrated approach is promoted throughout the chapter, which emphasises the three elements of sustainable development as equally important; water is to be viewed as “a natural resource and a social and economic good, whose quantity and quality determine the nature of its utilization.”33 5. Millennium Declaration and Political Declaration of Johannesburg Both the Millennium Declaration and the discourse adopted at the recent World Summit on Sustainable Development (WSSD) enhance the possibility of linking environmental health with human development goals in the global effort to eliminate poverty. However, WSSD –together with the World Water Forums (Hague, Bonn, and Kyoto) – failed to expressly recognise a fundamental human right to water. The indivisibility of human dignity and a right to water has been included in the Political Declaration of the World Summit on Sustainable Development through the commitment “to speedily increase access to such basic requirements as clean water, sanitation, adequate shelter, energy, health care, food security and the protection of biodiversity…”34 Regional arrangements Regionally too, there are numerous legal instruments which explicitly or implicitly recognise a right to water and again, the reader is referred to Appendix I for a more comprehensive list. 1. ECEL Resolution The European Council of Environmental Law (ECEL) Resolution on the right to water,35 forms yet another definitive link between human rights and water and “consider[s] that access to water is part of a sustainable development policy and cannot be regulated by market forces alone”, and “consider[s] that the right to water cannot be dissociated from the right to food and the right to housing which are recognized as human rights and that the right to water is also closely linked to the right to health.”36 Art. 1 of the Resolution states “[e]ach person has the right to water in sufficient quantity and quality for his life and health.” 2. ECE Protocol The European Commission of the United Nations for Europe (ECE) Protocol on Water and Health to the 1992 Convention on the Use of Transboundary Watercourses and International Lakes specifically states that “[p]arties shall, in particular, take all appropriate measures for the purpose of ensuring: (a) adequate supplies of wholesome drinking water …; (b) adequate sanitation …”.37 It mentions the three central aspects of a human right to water, stating that “…equitable access to water, adequate in terms of both quantity and of quality, should be provided for all members of the population, especially those who suffer a disadvantage or social exclusion.”38 Access to water and sanitation services are reinforced in Art. 6(1), which provides that “the Parties shall pursue the aims of: (a) access to drinking water for everyone; (b) provision of sanitation for everyone”. 3. African Charters There are a few instruments specific to the African region, such as the African Charter on Human and People's Rights, which notes broadly that “[a]ll peoples shall have the right to a general satisfactory environment favorable to their development”,39 and the African Charter on the Rights and Welfare of the Child, which states that “every child shall have the right to enjoy the best attainable state of physical, mental and spiritual health”40 and States Parties are required to take measures “to ensure the provision of adequate nutrition and safe drinking water...”41 4. Protocol of San Salvador Art. 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights provides that “[e]veryone shall have the right to live in a healthy environment and to have access to basic public services.” It is undoubtable that basic public services include water supply and sanitation: a report made by the Inter-American Commission on the human rights situation of Brazil clearly proves this by claiming that “there was inequality in the access to basic public services: 20.3% of the population have no access to potable water and 26.6% lack access to sanitary services…”42 B. Customary international law The development of environmental law as a recognised body of law has created an additional source of law for analysis of the existence of a right to water. This is because uniform State practice may provide evidence of opinio juris. It is appropriate to consider national constitutions as a source of an emerging right to water and court interpretations of fundamental rights contained in those constitutions. Whilst over 60 constitutions refer to environmental obligations, less than one-half expressly refer to the right of its citizens to a healthy environment. 43 Only the South African Bill of Rights enshrines an explicit right of access to sufficient water.44 In view of the aforegoing, a position that a uniform constitutional practice has emerged is rather doubtful, especially considering the fact that despite the increasing prevalence of constitutional environmental norms, most countries have yet to interpret or apply such norms.45 In many countries, particularly those with a civil law tradition, traditionally constitutional rights were not regarded as being self-executing; legislation was required to implement a constitutional provision and to empower a person to invoke protections. However, with the rise of constitutionalism globally, courts increasingly view the constitution as an independent source of rights, enforceable even in the absence of implementing legislation.46 Thus, courts could and do rely on the environmental provisions of their constitutions when protecting water from pollution or ensuring access to water to meet basic human needs. Where constitutions lack environmental provisions, reliance has been placed on the right to life, a provision contained in most constitutions worldwide. Constitutions many times incorporate ‘penumbral rights’, rights that are not explicitly mentioned in the constitution, but are consistent with its principles and existing rights.47 These rights could easily adopt emerging fundamental human rights. Both civil and common-law countries have incorporated the ‘Public Trust Doctrine’ in their constitutions.48 The doctrine dates back to the Institutes of Justinian (530 A.D.) and requires governments to protect certain resources, like water, that the government holds in trust for the public.49 Many of the US state constitutions have incorporated this doctrine, and courts in at least five states have used them to review state action.50 Similarly, Indian and Sri Lankan courts have relied on the doctrine to protect the environment. In the M.C. Mehta v. Kamal Nath Case 51 (1977), which concerned the diversion of a river's flow, the Supreme Court held that the government violated the public trust by leasing the environmentally sensitive riparian forest land to a company. In a landmark decision concerning the Eppawela Phosphate Mining Project, the Sri Lankan Supreme Court said that the ‘Public Trust Doctrine’ on which the petitioners depended was “comparatively restrictive in scope”. The court instead put forward a broader doctrine revolving around “Public Guardianship” to protect the site of an ancient kingdom and agricultural lands, and prevent the forced relocation of residents in Sri Lanka's North Central Province. The Court said that “[t]he organs of the State are guardians to whom the people have committed the care and preservation of the resources of the people.”52 In many cases, courts have applied the provisions of the right to life, environment, etc. where an environmentally destructive activity directly threatened people's health and life. The cases set out in Appendix II show that while there might not be a constitutional right to water, courts have been prepared to liberally interpret existing constitutional provisions. C. Judicial decisions Recent decisions show that recognition of a human right to water, though not recognised within the law of nations per se, is an emerging trend. In the Gabcikovo-Nagymaros Case53 (1997), Judge Weeramantry wrote that “[t]he protection of the environment is…a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself…damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”54 While there is no express recognition, human rights courts have been prepared to be creative and liberally interpret existing provisions in their decisions. The following shows how water has been recognised as an integral part of several fundamental human rights.

ICCPR critical to recognition and enforcement of a global right to water

Huang, 8

(JD-University of Florida, “Not Just Another Drop in the Human Rights Bucket: The Legal Significance of a Codified Human Right to Water,” 20 Fla. J. Int'l L. 353, December, Lexis)

Currently amidst the United Nations proclaimed Decade of Water for Life, n1 a vast sector of the world's population still lacks daily access to sources of clean water for personal and domestic use. n2 Despite the universal necessity of water for basic survival and minimal living conditions, a codified right to water does not presently exist in the international legal sphere. Although the right may be derived from many human rights treaties or non-binding declarations, States have seldom recognized an explicit right to water. Yet as the dialogue on climate [*354] change and other meteorological variations has increased, the movement toward codifying a right to water has simultaneously gained momentum. However, the question remains: why is it necessary to codify a human right to water? Left to the accretion of State practice n3 over time, development of customary international law may compensate for the silence on water rights-an unsatisfactory answer for the billions of people who face water deprivation and poverty as dual obstacles. Projected global populations will increasingly strain water resources, potentially leading to greater conflicts over this precious natural resource. Conflicts have already arisen in parts of the Middle East and sub-Saharan Africa and even include conflicts between humans and native fauna. n4 In addition to increased water consumption in the agricultural and industrial sectors, consumption will only rise further with the rapid industrialization of developing countries. n5 Other development issues include mismanagement of water and ecological resources, such as a lack of adequate water institutions, fragmented institutional structures, and short-sighted water policies. n6 The ecological consequences of water mismanagement are equally detrimental. Draining wetlands decreases water retention and recycling capacity; n7 and contaminated runoff and pollution of natural waterbodies foreclose human use. n8 The destruction of ecological habitats contributes [*355] to the increase of greenhouse gases and further exacerbates projected temperature increases. n9 Projections indicate a disproportionate increase of volatile weather patterns across the globe. n10 Increased severity of floods, such as those in India, will cause greater contamination of water sources and speed the spread of disease, n11 while other areas will experience corresponding drought and desertification. n12 The legal motivations to codify a right to water are equally compelling. State obligations and duties would be clearly identifiable, as would subsequent violations. Under a right to water, a State could not condone policies that discriminate against individuals based on their economic level or housing status. Yet the current failure to recognize a human right to water also does not provide any legal recourse or access for individuals whose rights are being violated. As a codified right, domestic and international legal institutions provide relief for violations by a State. n13 Currently, violations of a right to water are linked to other rights in order to provide a remedy. Codifying a right to water would spare this rhetorical gymnastics and hold states accountable for specific violations. II. Defining a Human Right to Water That water is an undisputed necessity for life attests to the need to protect a right to water for all. However, the importance of water in the current global order extends beyond its biological and ecological importance. Access to safe drinking water has transformed into a political, economic, and social issue at all levels. Underlying many of the political tensions in the Middle East are conflicts over water and water use among neighboring countries, such as Jordan, Israel, Syria, and Lebanon that dispute the use of the Jordon River. n14 The health implications are also significant; investments in water quality and sanitation can yield net [*356] economic benefits as a result of improved health conditions and reduced health-care costs. n15 Although the primary international human rights texts do not explicitly recognize a human right to water, n16 this right is clearly implied in and derived from the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social, and Cultural Rights (ICESCR). n17 For example, Articles 6 and 7 of the ICCPR guarantee the "inherent right to life" and freedom from "torture or to cruel, inhuman, or degrading treatment," respectively. n18 Water is essential to the full realization of these Articles, for deprivation of water may amount to deprivation of life or inhumane treatment. Moreover, Articles 21 and 25 of the ICCPR guarantee the right of peaceful assembly and the right to participate in public life, both of which relate to the monitoring, surveillance, and advocacy aspects of water management and a human right to water. n19

Legal recognition of the right to water key to solve water shortages and de-escalate conflicts

Gleick, 7

(President- Pacific Institute for Studies in Development, Environment, and Security, “The Human Right to Water,” May, http://www.pacinst.org/reports/human_right_may_07.pdf)

What is the point or advantage of explicitly acknowledging such a right? Even if the human right to water is formally accepted, what is the advantage of such an acknowledgment? After all, despite the declaration of a formal right to food, nearly a billion people remain undernourished. Let me offer five reasons for acknowledging a human right to water: 1. Acknowledging a right to water would encourage the international community and individual governments to renew their efforts to meet basic water needs of their populations. 2. By acknowledging a right to water, pressures to translate that right into specific national and international legal obligations and responsibilities are much more likely to occur. As Richard Jolly of the United Nations Development Programme noted: To emphasize the human right of access to drinking water does more than emphasize its importance. It grounds the priority on the bedrock of social and economic rights, it emphasizes the obligations of states parties to ensure access, and it identifies the obligations of states parties to provide support internationally as well as nationally. 3. Acknowledging a right to water maintains a spotlight of attention on the deplorable state of water management in many parts of the world. 4. Acknowledging a right to water helps focus attention on the need to more widely address international watershed disputes and to resolve conflicts over the use of shared water by identifying minimum water requirements and allocations for all basin parties. 5. Explicitly acknowledging a human right to water can help set specific priorities for water policy. In particular, meeting a basic water requirement for all humans to satisfy this right should take precedence over other water management and investment decisions. What are the implications of a human right to water? A right to water cannot imply a right to an unlimited amount of water, nor does it require that water be provided for free. Water availability is limited by resource constraints, the need to maintain natural ecosystems, and economic and political factors. Given such constraints on water availability, how much water is necessary to satisfy this right? Enough solely to sustain a life? Enough to grow all food sufficient to sustain a life? Enough to maintain a certain economic standard of living? Answers to these questions come from international discussions over development, analysis of the human rights literature, and an understanding of human needs and uses of water. These lead to the conclusion that a human right to water most logically applies only to basic needs for drinking, cooking, and fundamental domestic uses. Both the 1977 Mar del Plata statement and the 1986 UN Right to Development set a goal of meeting basic needs. The concept of meeting basic water needs was strongly reaffirmed during the 1992 Earth Summit in Rio de Janeiro. In developing and using water resources, priority has to be given to the satisfaction of basic needs … The Comprehensive Assessment of the Freshwater Resources of the World prepared for the Commission on Sustainable Development of the UN stated: All people require access to adequate amounts of clean water, for such basic needs as drinking, sanitation and hygiene. The UN Convention on the Law of the Non-Navigational Uses of International Watercourses, approved by the General Assembly on May 21, 1997, also explicitly addresses this question of water for basic human needs. Article 10 states that in the event of a conflict between uses of water in an international watercourse, special regard shall be given “to the requirements of vital human needs.” The states negotiating the Convention included in the Statement of Understanding accompanying it an explicit definition that: In determining ‘vital human needs’, special attention is to be paid to providing sufficient water to sustain human life… At what cost should this water be provided? Free? Full economic cost? Here the human rights literature is of little help, but the international water community is increasingly clear about the economics of water. I believe that water should be paid for, even basic water requirements, but that when a basic water requirement cannot be paid for by individuals – for reasons of poverty, emergency, or circumstance – it is still the responsibility of local communities, local governments, or national governments to provide that basic water requirement though subsidies or outright entitlement. Conclusion The failure to meet the most basic water requirements of billions of people has resulted in enormous human suffering and tragedy. It may be remembered as the 20th Century’s greatest failure. Reviewing evidence of international law, declarations of governments and international organizations, and state practices, access to a basic water requirement must be considered a fundamental human right. Let me offer a possible formulation appropriate to the existing human rights declarations: All human beings have an inherent right to have access to water in quantities and of a quality necessary to meet their basic needs. This right shall be protected by law. Will the recognition of the human right to water actually improve conditions worldwide? Perhaps not. The challenge of meeting human rights obligations in all areas is a difficult one that has been inadequately and incompletely addressed. But the imperatives to meet basic human water needs are more than just moral, they are rooted in justice and law and the responsibilities of individuals and governments. A first step toward meeting a human right to water would be for governments, water agencies, and international and local organizations to guarantee all humans the most fundamental of basic water needs and to work out the necessary institutional, economic, and management strategies necessary for meeting those basic needs, quickly and completely.

Water scarcity is increasing – it short-circuits cooperation in every region

Dinar et al 10/18/12

SHLOMI DINAR is associate professor in the Department of Politics and International Relations and associate director of the School of International and Public Affairs at Florida International University. LUCIA DE STEFANO is associate professor at Complutense University of Madrid and researcher at the Water Observatory of the Botín Foundation. JAMES DUNCAN is consultant on natural resource governance and geography with the World Bank. KERSTIN STAHL is senior scientist at the Institute of Hydrology in the University of Freiburg. KENNETH M. STRZEPEK is research scientist with the Massachusetts Institute of Technology Joint Program on the Science and Policy of Global Change. AARON T. WOLF is a professor of geography in the College of Earth, Ocean, and Atmospheric Sciences at Oregon State University, Foreign Affairs, October 18, 2012, "No Wars for Water", http://www.foreignaffairs.com/articles/138208/shlomi-dinar-lucia-de-stefano-james-duncan-kerstin-stahl-kenneth/no-wars-for-water?page=show

In short, predictions of a Water World War are overwrought. However, tensions over water usage can still exacerbate other existing regional conflicts. Climate change is expected to intensify droughts, floods, and other extreme weather conditions that jeopardize freshwater quantity and quality and therefore act as a threat-multiplier, making shaky regions shakier. So what river basins constitute the biggest risks today? In a World Bank report we published in 2010 (as well as a subsequent article in a special issue of the Journal of Peace Research) we analyzed the physical effects of climate change on international rivers. We modeled the variability in river annual runoff in the past and for future climate scenarios. We also considered the existence and nature of the institutional capacity around river basins, in the form of international water treaties, to potentially deal with the effects of climate change. According to our research, 24 of the world's 276 international river basins are already experiencing increased water variability. These 24 basins, which collectively serve about 332 million people, are at high risk of water related political tensions. The majority of the basins are located in northern and sub-Saharan Africa. A few others are located in the Middle East, south-central Asia, and South America. They include the Tafna (Algeria and Morocco), the Dasht (Iran and Pakistan), the Congo (Central Africa), Lake Chad (Central Africa), the Niger (Western Africa), the Nile (Northeastern Africa), and the Chira (Ecuador and Peru). There are no strong treaties governing the use of these water reserves in tense territories. Should conflicts break out, there are no good mechanisms in place for dealing with them. By 2050, an additional 37 river basins, serving 83 million people, will be at high risk for feeding into political tensions. As is the case currently, a large portion of these are in Africa. But, unlike today, river basins within Central Asia, Eastern Europe, Central Europe, and Central America will also be at high risk within 40 years. Some of these include the Kura-Araks (Iran, Turkey, and the Caucasus), the Neman (Eastern Europe) Asi-Orontes (Lebanon, Syria, Turkey), and the Catatumbo Basins (Colombia and Venezuela). CROSSING THE NILE Among the larger African basins, the Nile has the greatest implications for regional and global security. Tensions over access to the river already pit Ethiopia and Egypt, two important Western allies, against one another. Egypt has been a major player in the Middle East Peace Process and Ethiopia is an important regional force in the Horn of Africa, currently aiding other African forces to battle Al-Shabbab in Somalia. Over the years, a number of international water treaties have made rules for the basin, but they are largely limited to small stretches of it. In particular, only Egypt and Sudan are party to the 1959 Nile River Agreement, the principal treaty regarding the river. Egypt, which is the furthest downstream yet is one of the most powerful countries in the region, has been able to heavily influence the water-sharing regime. Upstream countries, such as Ethiopia and Burundi, have been left out, hard-pressed to harness the Nile for their own needs. In 1999, with increasingly vitriolic rhetoric between Egypt and Ethiopia sidetracking regional development, the World Bank stepped up its involvement in the basin. It helped create a network of professional water managers as well as a set of investments in a number of sub-basins. Still, the drafting of a new agreement stalled: upstream countries would not compromise on their right to develop water infrastructure while downstream countries would not compromise on protecting their shares. In 2010, Ethiopia signed an agreement with a number of the other upstream countries hoping to balance against Egypt and Sudan. More recently, the country has also announced plans to construct a number of large upstream dams, which could affect the stability of the region. By 2050, the environmental state of the Nile Basin will be even worse. That is why it is important to create a robust and equitable water treaty now. Such a treaty would focus on ways to harness the river's hydropower potential to satiate the energy needs of all the riparian states while maintaining ecosystem health. The construction of dams and reservoirs further upstream could likewise help even out water flows and facilitate agricultural growth. Projects such as these, mitigating damage to ecosystem health and local populations, would benefit all parties concerned and thus facilitate further basin-wide cooperation. UP IN THE ARAL Another water basin of concern is the Aral Sea, which is shared by Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan. The basin consists of two major rivers, the Syr Darya and Amu Darya. During the Soviet era, these two rivers were managed relatively effectively. The break-up of the Soviet Union, however, ended that. The major dispute now is between upstream Kyrgyzstan and downstream Uzbekistan over the Syr Darya. During the winter, Kyrgyzstan needs flowing water to produce hydroelectricity whereas Uzbekistan needs to store water to later irrigate cotton fields. The countries have made several attempts to resolve the dispute. In particular, downstream Uzbekistan, which is rich in fuel and gas, has provided energy to Kyrgyzstan to compensate for keeping water in its large reservoirs until the cotton-growing season. Such barter agreements, however, have had limited success because they are easily manipulated. Downstream states might deliver less fuel during a rainy year, claiming they need less water from upstream reservoirs, and upstream states might deliver less water in retaliation. Kyrgyzstan, frustrated and desperate for energy in winter months, plans to build mega hydro-electric plants in its territory. And another upstream state, Tajikistan, is likewise considering hydro-electricity to satiate its own energy needs. Meanwhile, Uzbekistan is building large reservoirs. Although these plans might make sense in the very near term, they are inefficient in the medium and long term because they don't solve the real needs of downstream states for large storage capacity to protect against water variability across time. In fact, both Kyrgyzstan and Uzbekistan, along with Kazakhstan, will see substantial increases in water variability between now and 2050. And so, the need to share the benefits of existing large-capacity upstream reservoirs and coordinate water uses through strong and more efficient inter-state agreements is unavoidable. A stabilized Aral Sea basin would also benefit the United States. With its withdrawal from Afghanistan, Washington has been courting Uzbekistan as a potential alternative ally and provider of stability in the region. The Uzbek government seems willing to host U.S. military bases and work as a counter-weight to Russia. Kyrgyzstan is also an important regional player. The Manas Air Base, the U.S. military installation near Bishkek, is an important transit point. The country is also working with the United States to battle drug trafficking and infiltration of criminal and insurgent groups. Regional instability could disrupt any of these strategic relationships. If the past is any indication, the world probably does not need to worry about impending water wars. But they must recognize how tensions over water can easily fuel larger conflicts and distract states from other important geopolitical and domestic priorities. Since formal inter-state institutions are key to alleviating tensions over shared resources, it would be wise, then, for the involved governments as well as the international community to negotiate sufficiently robust agreements to deal with impending environmental change. Otherwise, freshwater will only further frustrate stability efforts in the world's volatile regions.

That causes wars

Reilly ‘2

(Kristie, Editor for In These Times, a nonprofit, independent, national magazine published in Chicago. We’ve been around since 1976, fighting for corporate accountability and progressive government. In other words, a better world, “NOT A DROP TO DRINK,” http://www.inthesetimes.com/issue/26/25/culture1.shtml)

*Cites environmental thinker and activist Vandana Shiva Maude Barlow and Tony Clarke—probably North America’s foremost water experts

The two books provide a chilling, in-depth examination of a rapidly emerging global crisis. “Quite simply,” Barlow and Clarke write, “unless we dramatically change our ways, between one-half and two-thirds of humanity will be living with severe fresh water shortages within the next quarter-century. … The hard news is this: Humanity is depleting, diverting and polluting the planet’s fresh water resources so quickly and relentlessly that every species on earth—including our own—is in mortal danger.” The crisis is so great, the three authors agree, that the world’s next great wars will be over water. The Middle East, parts of Africa, China, Russia, parts of the United States and several other areas are already struggling to equitably share water resources. Many conflicts over water are not even recognized as such: Shiva blames the Israeli-Palestinian conflict in part on the severe scarcity of water in settlement areas. As available fresh water on the planet decreases, today’s low-level conflicts can only increase in intensity.

The plan also results in adherence to the convention against torture, that’s an inviolable human right

CVT 13, Center for Victims Against Torture, the center for victims of torture policy report: u.s. bi-partisan leadership against torture, April, http://www.cvt.org/sites/cvt.org/files/downloads/Report_Bipartisan%20Leadership%20Against%20Torture_April%202013.pdf

The United States, as a democratic society that respects the rule of law, has an interest in abiding by its legal obligation under both international and domestic law to uphold the absolute prohibition against torture. Additionally, the United States has both a foreign policy and national security interest in being a global leader on human rights generally, and a leader in combatting torture specifically. Generally, U.S. global leadership on human rights promotes good will and cooperation from allies and world citizens in furtherance of U.S. interests. More specifically, U.S. leadership on combatting torture helps to build democratic societies and institutions abroad – where often, torture is used to repress and destroy democratic freedoms. Additionally, because of the U.S. economic, military and political power on the world stage, U.S. global leadership against torture has serious ramifications for the torture movement and survivors’ healing worldwide. INTERNATIONAL AND U.S. DOMESTIC LEGAL OBLIGATIONS The absolute prohibition against torture is a universally recognized legal obligation under international law from which no exception is ever permitted. In addition to the Convention Against Torture, torture is unequivocally banned under the Universal Declaration of Human Rights,26 International Covenant on Civil and Political Rights,27 Geneva Conventions,28 and in every regional human rights treaty.29 Indeed, the prohibition against torture is well established under customary international law as a legal norm in which no country can derogate.30 Torture is also banned under U.S. law under the federal Anti-Torture Act,31 the War Crimes Act,32 and the Detainee Treatment Act.33 Torture also violates rights established under the U.S. Constitution, including the Eighth Amendment’s right to be free of cruel or unusual punishment.34 As the U.S. Assistant Secretary of State for Democracy, Human Rights, and Labor, Harold Koh, testified to a United Nations committee: "Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. In every instance, torture is a criminal offense. No official of the government—federal, state, or local, civilian or military—is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification for torture."35 The United States has long embraced the principles and values underpinning democratic societies such as justice, fairness and individual rights. Enforcing and upholding the rule of law is an essential pillar of democracy. The U.S., therefore, should embrace its international and domestic obligations to prohibit torture. As Koh wrote in 2008, “Official cruelty has long been considered both illegal and abhorrent to our values and constitutional traditions. The commitment to due process and the ban against cruel and unusual punishment are legal principles of the highest significance in American life.” 36 Furthermore, international treaties are a practical step toward creating international cooperation and consensus toward a more stable world. Reducing risk and creating a more manageable global community are in the United States’ interest. William H. Taft, IV, Legal Adviser for the U.S. State Department, under President George W. Bush, warned “A decision that the [Geneva] Conventions do not apply to the conflict in Afghanistan in which our armed forces are engaged deprives our troops there of any claim to the protection of the Convention in the event they are captured and weakens the protections afforded by the Conventions to our troops in future conflicts.”37 U.S. FOREIGN POLICY The U.S. State Department has repeatedly acknowledged that U.S. funding to the UN Voluntary Fund for Victims of Torture “supports the U.S. foreign policy goal of promoting democracy and human rights.”38 In 2002, the U.S. State Department affirmed, “The use of torture presents a formidable obstacle to establishing and developing accountable democratic governmental institutions. Assisting torture victims helps establish and reinforce a climate of respect for the rule of law, good governance and respect for human rights.”39 Moreover, the United States needs to engage the international community on many complex issues requiring multilateral cooperation. U.S. leadership to promote and protect human rights encourages political, military, and intelligence cooperation from our allies. By contrast, U.S. engagement in torture and abuse discourages cooperation from allies and international partners critical to furthering interests abroad. Prior to the Bush Administration deciding that the Geneva Conventions did not apply to the conflict in Afghanistan, Secretary of State Colin L. Powell argued that the advantages of applying the Geneva Conventions to the conflict in Afghanistan far outweighed their rejection because declaring the conventions inapplicable "has a high cost in terms of negative international reaction, with immediate adverse consequences for our conduct of foreign policy.”40 He also said it would "undermine public support among critical allies"41 and that “Europeans and others will likely have legal problems with extradition or other forms of cooperation in law enforcement, including in bringing terrorists to justice.”42 Indeed, in testimony before the Senate Armed Services, U.S. Navy General Counsel Alberto Mora (who served in this capacity during the first George W. Bush Administration) recounted that the U.S.’s decision “to adopt cruelty has had devastating foreign policy consequences” that would “inevitably damage [U.S.] national security strategy and [U.S.] operational effectiveness in the War on Terror.”43 He added, “International cooperation, including in the military, intelligence, and law enforcements arenas, diminished as foreign officials became concerned that assisting the U.S. in detainee matters could constitute aiding and abetting criminal conduct in their own countries.”44 U.S. NATIONAL SECURITY U.S. national security interests are also furthered when the United States leads on human rights and combatting torture by promoting good will and winning hearts and minds of local populations – efforts that are critical to counter-insurgency and counterterrorism efforts. Likewise, these efforts are essential to building and sustaining international support and cooperation with allied nations. The Senate Armed Services Committee found that: “The collection of timely and accurate intelligence is critical to the safety of U.S. personnel deployed abroad and to the security of the American people here at home. The methods by which we elicit intelligence information from detainees in our custody affect not only the reliability of that information, but our broader efforts to win hearts and minds and attract allies to our side.”45 In fact, in testifying before Congress that U.S. mistreatment caused damaged to U.S. national security interest at an operational level, U.S. Navy General Counsel Alberto Mora cited specific examples in which allies “hesitated on occasion to participate in combat operations” and “refused on occasion to train with [the U.S.] in joint detainee capture and handling operations” because of concerns with U.S. treatment of detainees and detention policies.46 He also stated that senior NATO officers in Afghanistan reportedly “left the room when issues of detainee treatment [were] raised by U.S. officials out of fear that they may become complicit in detainee abuse.”47 As stated by then Senator John Kerry in 2008, “Most of us can agree that sometimes, in the name of national security, it is necessary to make difficult ethical decisions to protect the American people. However, the administration's dangerous and counterproductive choice to employ torture has severely weakened our ability to win the struggle against extremism. It has also wasted our greatest asset: our moral authority.”48 Moreover, engaging in practices of torture and cruelty serves as a recruitment tool for U.S. enemies and discourages enemies from surrendering. The Senate Armed Services Committee found that“[t]reating detainees harshly only reinforces that distorted view, increases resistance to cooperation, and creates new enemies.”49 In testifying before Congress, U.S. Navy General Counsel Alberto Mora stated, “There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq -- as judged by their effectiveness in recruiting insurgent fighters into combat -- are, respectively the symbols of Abu Ghraib and Guantanamo.”50 Similarly, General Raymond Odierno, commander of U.S. troops in Iraq, stated, “The graphic revelations of detainee abuse motivated some terrorists including foreign fighters from Syria, Yemen and Saudi Arabia to join the jihad.”51 SPILL-OVER “JUSTIFICATIONS” AND DANGEROUS PRECEDENT When the United States engages in torture and abuse in the name of national security, it provides justifications for other governments and oppressive regimes to do the same against innocent civilians, journalists, democracy activists, people seeking to practice their own religion, and even puts U.S. troops in danger. CVT has seen strikingly similar patterns worldwide among different leaders – left and right- who rationalize the use of torture by dehumanizing the victim, citing national emergencies and security as justification, and assuming an ability to produce a desired outcome through fear and violence. When crises arise that prove beyond the scope of leaders’ imaginations and/or resources, desperate measures are often supposed necessary. Moreover, when the U.S. government openly violated its international legal obligations, it set a dangerous precedent not only on the issue of torture, but for the broader notion that those duties are optional. U.S. government policies and practices weakened international human rights instruments designed to end torture (the CAT and the Geneva Conventions). Flagrant disregard for treaties and conventions that the U.S. has ratified has profound implications for the global community’s efforts to secure support for international norms. By flouting these obligations, the United States also delivered an implicit message that torture, once seen as the tool of despotic regimes, could be shaped to look like legitimate component of a democratic government’s national defense. Furthermore, the United States’ practice of torture places U.S. troops in danger should they be captured. In remarks on the floor of the U.S. Senate, Senator John McCain cautioned, “… if America uses torture, it could someday result in the torture of American combatants.”52 He went on to warn that the United States should “…be careful that we do not set a standard that another country could use to justify their mistreatment of our prisoners.” 53 HEALING FOR TORTURE SURVIVORS AROUND THE WORLD Whenever laws banning torture are upheld, a message is transmitted to repressive governments and victims seeking an end to impunity wherever it exists. Leaders and ordinary citizens learn that, in some places, those who violate human rights are held responsible. By contrast, the cost of impunity for survivors is enormous. For CVT clients, accountability for perpetrators is intertwined with the healing process and their struggle to make sense of their suffering. The recovery process is made more challenging when the person who committed the violence against them still walks free. In response to reports that the United States was using torture and cruelty on detainees, an unprecedented number of retired military leaders spoke out publicly against these policies, and Congress held hearings and attempted to repair the damage by passing the McCain Amendment, requiring all Department of Defense personnel and facilities to use the guidelines set forth in the U.S. Army Field Manual as the minimum standards for the treatment of detainees. Other important steps include the public release of the Senate Armed Services Committee’s Inquiry into the Treatment of Detainees in U.S. Custody, the Office of Legal Counsel Memos authorizing torture, and the CIA Inspector General Report. But perhaps the most significant step taken by the United States was on January 22, 2009, when President Obama signed an Executive Order banning torture and cruelty and closing CIA black sites. Nevertheless, important work remains to be done. The U.S. national consensus against torture has been eroded. In a climate of extreme fear and deep anxiety about our national security, the need for, efficacy of and moral justifications for torture and cruelty were distorted. Many Americans have been led to believe that we must abide by torture and cruelty to keep our families safe. Furthermore, the U.S. government has not, to date, conducted a thorough investigation into sound evidence of torture and cruelty as required by the CAT. Article 12 of the CAT states: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” Accountability has been inaccurately framed as a divisive partisan battle. Recall, however, that it was President Reagan who noted in his transmission of the Convention to the Senate that its strength was in its provisions to criminally prosecute perpetrators under the principle of universal jurisdiction. Moreover, from the perspective of those who provide care to torture survivors, this is not a political question. We see both the compelling public policy reasons – ending impunity is a powerful deterrent—as well as the profound, far-reaching effects on the lives of our clients. Whenever atrocities are committed, there is often a desire to avoid unearthing the uncomfortable and to instead move forward. Yet, in doing so, we allow the culture of impunity to persist and miss an opportunity to prevent future abuses. In order for the United States to regain its historical commitment to supporting the international ban on torture and cruelty, it must fully examine and account for its recent past unlawful policies and practices of torture and official cruelty. To this end, the United States must ensure it does not return to illegal policies of torture and cruelty; it must fully investigate credible allegations of abuse; it must prosecute those who authorize, order, or engage in acts of torture; it must provide torture survivors an effective right to a remedy; and it should continue to rehabilitate torture survivors worldwide. Until the United States comes to terms with its own use of torture post 9/11, it cannot be and will not be seen to be a credible force for human rights.

Human rights are protections, pure and simple – they require universality to be effective

Michael Ignatief 1, Director of the Carr Center for Human Rights at the Kennedy School of Government at Harvard University, “The Attack on Human Rights”, Foreign Affairs, November/December

But at the same time. Western defenders or human rights have traded too much away. In the desire to find common ground with Islamic and Asian positions and to purge their own discourse of the imperial legacies uncovered by the postmodernist critique, Western defenders of human rights norms risk compromising the very universality they ought to be defending. They also risk rewriting their own history. Many traditions, not just Western ones, were represented au inc drafting of the Universal Declaration of Human Rights—for example, the Chinese, Middle Eastern Christian, Marxist, Hindu, Latin American, and Islamic. The members of the drafting committee saw their task not as a simple ratification of Western convictions but as an attempt to delimit a range of moral universals from within their very different religious, political, ethnic, and philosophical backgrounds. This fact helps to explain why the document makes no reference to God in its preamble. The communist delegations would have vetoed any such reference, and the competing religious traditions could not have agreed on words that would make human rights derive from human beings' common existence as Gods creatures. Hence the secular ground of the document is not a sign of European cultural domination so much as a pragmatic common denominator designed to make agreement possible across a range of divergent cultural and political viewpoints. It remains true, of course, that Western inspirations—and Western drafters—played the predominant role in the drafting of the document. Even so, the drafters' mood in 1947 was anything but triumphalist. They were aware, first of all, that the age of colonial emancipation was at hand: Indian independence was proclaimed while the language of the declaration was being finalized. Although the declaration does not specifically endorse self-determination, its drafters clearly foresaw the coming tide of struggles for national independence. Because it does proclaim the right of people to selfgovernment and freedom of speech and religion, it also concedes the right of colonial peoples to construe moral universals in a language rooted in their own traditions. Whatever failings the drafters of the declaration may be accused of, unexamined Western triumphalism is not one of them. Key drafters such as Rene Cassin of France and John Humphrey of Canada knew the knell had sounded on two centuries of Western colonialism. They also knew that the declaration was not so much a proclamation of the superiority of European civilization as an attempt to salvage the remains of its Enlightenment heritage from the barbarism of a world war just concluded. The declaration was written in full awareness of Auschwitz and dawning awareness of Kolyma. A consciousness of European savagery is built into the very language of the declarations preamble; "Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind ..." The declaration may still be a child of the Enlightenment, but it was written when faith in the Enlightenment faced its deepest crisis. In this sense, human rights norms are not so much a declaration of the superiority of European civilization as a warning by Europeans that the rest of the world should not reproduce their mistakes. The chief of these was the idolatry of the nation-state, causing individuals to forget the higher law commanding them to disobey unjust orders. The abandonment of this moral heritage of natural law and the surrender of individualism to collectivism, the drafters believed, led to the catastrophes of Nazi and Stalinist oppression. Unless the disastrous heritage of European collectivism is kept in mind as the framing experience in the drafting of the declaration, its individualism will appear to be nothing more than the ratification of Western bourgeois capitalist prejudice. In 'act, it was much more: a studied attempt to reinvent the European natural law tradition in order to safeguard individual agency against the totalitarian state. IT REMAINS TRUE, therefore, that the core of the declaration is the moral individualism for which it is so reproached by non-Western societies. It is this individualism for which Western activists have become most apologetic, believing that it should be tempered by greater emphasis on social duties and responsibilities to the community. Human rights, it is argued, can recover universal appeal only if they soften their individualistic bias and put greater emphasis on the communitarian parts of the declaration, especially Article 29, which says that "everyone has duties to the community in which alone the free and full development of his personality is possible." This desire to water down the individualism of rights discourse is driven by a desire both to make human rights more palatable to less individualistic cultures in the non-Western world and also to respond to disquiet among Western communitarians at the supposedly corrosive impact of individualistic values on Western social cohesion. But this tack mistakes what rights actually are and misunderstands why they have proven attractive to millions of people raised in non-Western traditions. Rights are meaningful only if they confer entitlements and immunities on individuals; they are worth having only if they can be enforced against institutions such as the family, the state, and the church. This remains true even when the rights in question are collective or group rights. Some of these group rights such as the right to speak your own language or practice your own religion-are essential preconditions for the exercise of individual rights. The right to speak a language of your choice will not mean very much if the language has died out. For this reason, group rights are needed to protect individual rights. But the ultimate purpose and justification of group rights is not the protection of the group as such but the protection of the individuals who compose it. Group rights to language, for example, must not be used to prevent an individual from learning a second language. Group rights to practice religion should not cancel the right of individuals to leave a religious community if they choose. Rights are inescapably political because they tacitly imply a conflict between a rights holder and a rights "withholder," some authority against which the rights holder can make justified claims. To confuse rights with aspirations, and rights conventions with syncretic syntheses of world values, is to wish away the conflicts that define the very content of rights. Individuals and groups will always be in conflict, and rights exist to protect individuals. Rights language cannot be parsed or translated into a non-individualistic, communitarian framework; it presumes moral individualism and is nonsensical outside that assumption. Moreover, it is precisely this individualism that renders human rights attractive to non-Western peoples and explains why the fight for those rights has become a global movement. The language of human rights is the only universally available moral vernacular that validates the claims of Rights doctrines women and children against the oppression they experience in patriarchal and tribal challenge powerful. societies; it is the only vernacular that enables religions tribes, and dependent persons to perceive themselves a and as moral agents and to act against practices- authoritaran states. arranged marriages, purdah, civic disenfranchisement, genital mutilation, domestic slavery, and so on-that are ratified by the weight and authority of their cultures. These agents seek out human rights protection precisely because it legitimizes their protests against oppression. If this is so, then it is necessary to rethink what it means when one says that rights are universal. Rights doctrines arouse powerfiul opposition because they challenge powerful religions, family structures, authoritarian states, and tribes. It would be a hopeless task to attempt to persuade these holders of power of the universal validity of rights doctrines, since if these doctrines prevailed, their exercise of authority would necessarily be abridged and constrained. Thus universality cannot imply universal assent, since in a world of unequal power, the only propositions that the powerful and powerless would agree on would be entirely toothless and anodyne. Rights are universal because they define the universal interests of the powerless-namely, that power be exercised over them in ways that respect their autonomy as agents. In this sense, human rights represent a revolutionary creed, since they make a radical demand of all human groups that they serve the interests of the individuals who compose them. This, then, implies that human groups should be, insofar as possible, consensual, or at least that they should respect an individual's right to exit when the constraints of the group become unbearable. The idea that groups should respect an individual's right of exit is not easy to reconcile with what groups actually are. Most human groups-the family, for example-are blood groups, based on inherited kinship or ethnic ties, People do not choose to be born into them and do not leave them easily, since these collectivities provide the frame of meaning within which individual life makes sense. This is as true in modern secular societies as it is in religious or traditional ones. Group rights doctrines exist to safeguard the collective rights-for example, to language-that make individual agency meaningful and valuable. But individual and group interests inevitably conflict. Human rights exist